Court allows prosecution discretion in summary trials to omit witnesses named on the charge sheet.

[*149] 1983 Oct. 8

(HADJIHAMBIS, D.J.)

IN THE DISTRICT COURT OP LIMASSOL

Limassol Police,

v.

Michael Panteli Kouzis,

Accused.

(Case No. 12439/83).

Criminal Procedure - Trial in criminal cases - Witnesses named on the charge - Whether Prosecution under a duty to call them to give evidence or tender them for cross-examination - Discretion of the Prosecution a wide one - Principles on which Court interferes with the exercise of such discretion - Stage at which witnesses not called by the Prosecution may be called by the Court-Whether obligation of Prosecution to call witnesses named on the indictment applies to summary trials as well - Section 54 of the Criminal Procedure Law, Cap. 155.

P.S. Loucaides, for the Prosecution.

A. Myrianthis, for the accused.

RULING

The following ruling was delivered by:-

HADJIHAMBIS. D.J. :- At the hearing 1 [*150] of the present charge, the Prosecuting Officer, having called two witnesses whose names appear on the charge sheet, namely P.S.. 1549 Th. Petrides and Pavlos Chr istodoulou, informed the Court that he did not propose to call the third person named on the charge sheet as a witness for the Prosecution and proposed to c lose his case without tendering the said third person to the Defence for cross-examination.

Learned counsel for the accused submitted thereupon that it was the obligation of the Prosecuting officer to tender the said person to the defence for cross examination if the prosecution did not propose to use him as a witness, a course which the Prosecuting Officer argued he was not obliged to take. I heard argument of both sides regarding this issue and today I further asked both sides to argue on the grounds . upon which the decision not to call this witness, on behalf of the Prosecution was taken. It has been the argument of the prosecuting officer that the undisputed rule as to the obligation of the prosecution to tender the witnesses whose names appear on the indictment to the defence for cross examination, so far as the prosecution does not intend to call them, only applies in trials on indictment and has no application to summary trials, where the prosecution, he argued, has a complete discretion whether to call any witnesses, including those whose names appear on the charge sheet. Learned counsel for the accused argued that the rule which applies in trials on indictment applies equally in summary trials and further that in any case the Court itself has a discretion of its own motion to call a witnesswhom the prosecution failed to call. [*151]

The matter has been dealt with in the English authorities to a considerable extent although there are no real authorities in Cyprus dealing with it, the only case being Koukounides.v. The Police (1967) 2 C.L.R. 167, where the Supreme Court refused to deal with the matter (whether the Court was entitled to call a witness of its own motion after the close of the case for the defence) because no authorities had been cited so that the matter might be properly argued.

Having reviewed the English authorities, I wish to refer, in the first place, to the established rule that in trials on indiotment the position is as expressed in the decision of the Court of Criminal Appeal in R. v. Oliva (1965) 49 Cr. App. R. p. 298 to the effect that, as Lord Parker, L.C.J., put it at p. 309:

"The Prosecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide. discretion in the prosecution whether they should call them either calling and examining them, or calling and tendering “them for cross-examination."

His Lordship continued at page 310:

"The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness's evidence is capable of belief, then it is their duty, well recognised, that he should be called, even though the evidence that he is going [*152] to give is inconsistent with the case sought to be proved. Their discretion must be exercised in a manner which is calculated to further the interest of justice, and at 'the same time be fair to the defence. If the prosecution appear to be exercising that discretion improperly, it is open to the judge of trial to interfere and in his discretion in turn to invite the prosecution to call a particular witness, and, if they refuse, there is the ultimate sanction in the judge himself calling that witness."

I should also wish to refer to the opinion of the Privy Council in Adel Muhammed El Dabbah v. Attorney-General of Palestine, (1944) 2 All E.R. page 139 P.C., where Lord Thankerton, giving the opinion of the Board, said, at page 143:

"The Court of Criminal Appeal held that the strict position in law was that it was not necessary legally for the prosecution to put forward these witnesses, and that they could not say that the Chief Justice erred in point of law, but t hey pointed out that, in their opinion, the better practice is that the witnesses should be so tendered at the close of the case for the prosecut ion so that the defence may cross-examine them if they so wish, and they desired to lay down as a rule of practice that in future this practice of tendering witnesses whould be generally followed in all courts. While their Lordships agree that there [*153] was no obligation on the prosecution to tender these witnesses and, therefore, this contention of the present appellant fails, their Lordships doubt whether the rule of practice as expressed by the Court of Criminal Appeal sufficiently recognises that the prosecutor has a discretion as to what witnesses should be called for the prosecution, and the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive;"

His Lordship went on to review the earlier authorities and said:

"It is consistent with the discretion of counsel for the prosecutor, which is thus recognised, that it should be a general practice of prosecuting counsel, if they find no sufficient reason to the contrary, to tender such witnesses for cross-examination by the defence; and this practice has probably. become even more general in recent years, and rightly so - but it remains a matter for the discretion of the prosecutor."

His Lordship then referred to a remark made" by Lord Hewart, L.C.J,, in R. v. Harris (1927) 20 Cr. App. R. p. 87 to the effect that:

"...in criminal cases the prosecution is bound to call all the material witnesses before the court, [*154] even though they give inconsistent accounts, in order that the whole of the facts may be before the jury."

His Lordship, commenting on this remark, said:

"In their Lordship view, LORD HEW ART, L.C.J., could not have intended to negative the longestablished right of the prosecutor to exercise his discretion to determine who the material witnesses are."

It should, of course, be noted that R. v. Harris as well as R. v. Tregear

(1967) 51 Cr. App. R. 280 and R. v. Cleghorn (1967) 51 Cr. App. R. 291 were cases of a witness being called after the close of the case for the defence, where the power of the court to call witnesses is limited, and I do not propose to refer further to these cases. It is, however, a recognised rule, on the basis of the authorities to which I have referred, that, if the Court is of opinion that the prosecution is exercising its discretion wrongly, it may invite the prosecution to call the particular witness or, if the prosecution refuses to do so, to call a witness itself of its own motion. I refer further

in t his respect to R. v. Nagent (1977) 3 All E.R. 662, Seneviratne v. R (1936) 3 All E.R. 36 P.C., Archbold, Criminal Pleading,

Evidence & Practice, 40th Edition, paras. 444 and

592 and to Halsbury’s Laws of England, 4th edition, Volume 11, paras. 286 and

296. [*155]

Turning to the question whether,the above rule applies to trials on indictment only or to summary trials also, I refer to Webb and Leadbetter (1966) 2 All E.R. page 114, a case dealing with summary trials where a witness whom the prosecution had not called because he had not turned up appeared later, after the close of the case for the defence and after the justices had retired for their judgment, whereupon the justices allowed him to be called as their witness .

On appeal to the Queen’s Bench Division, it was held that it was wrong for the justices to allow a witness to be called at that late stage in the trial, but the.

decision seems to recognise that there is an inherent power in the Court in summary trials to allow witnesses to be called or call a witness of its own motion.

As Lord Parker, L.C.J., put it, at page 115:

"Nevertheless, it does seem to me that there must always be some residuary discretion in the court to allow, in particular circumstances, evidence to be called, but the manner in which that discretion is ” exercised must depend on the stage of the case."

After

saying that, generally speaking, it would be wrong to call a witness or follow a witness to be called after the close of the case for the

defence, he said that:

"At an earlier stage it may well be proper to exercise the discretion in favour of allowing a witness to be called, and indeed that was suggested in a decision of this court in Saunders v. Johns (I964), 'The Times’ , Nov. 19." [*156] where Lord Parker, L.C.J., again said:

"What might well, and indeed, should have happened in this case, was that as soon as a submission of no case was made, the prosecution themselves, or the ” court of its motion, could then have recalled the police constable and obtained this evidence, evidence which could show that there was a prima facie case."

I would also refer to the case of Phellan and Back (1972) 1 All E.R. p. 901 where Webb and Leadbetter was reviewed and its principle affirmed by the Queen’s Bench Division.

Finally, I wish to refer to the Criminal Procedure Law, Cap. 155. s.54, which comes under the provision relating to all trials, summary and on information, and which provides:

"The Court, at any stage of the proceedings, may call any person as a witness or re-call and further examine any person already examined and the Court may examine or re-call and further examine any such person if his evidence appears to the Court to be essential to the just determination of the case."

Taking first the question of the Prosecution's duty regarding the persons named on the charge sheet, although the matter is not clearly covered by authority regarding summary trials I would tend to believe, upon my view on the authorities and having particular regard to the principle of [*157] fair trial embodied in the Constitution, that the rules applicable in trials on indictment should equally apply in summary trials. I recognise, of course, that in trials on indictment the considerations that apply to the persons whose names appear on the indictment make it all the more necessary for the rule that the Prosecution must tender such persons to the defence for cross-examination if they do not propose to call them themselves as witnesses, but it seems to me that, within the frame-work of a fair trial, the Prosecution’s duties must be seen in a wider perspective and that it is a principle applicable in all trials, on indictment or otherwise that the Prosecution should discharge its duty to the Court in a fair manner to the accused by producing all persons whose evidence may be essential to the determination of the charge, whether their

evidence is favourable to the Prosecution or not. Accordingly, I believe that the Prosecution in summary trials have

the discretion whether to call any particular person as a witness, whether that person's name appears on the charge sheet or not, and that this discretion must be exercised in conformity with the proper discharge of the Prosecution’s duty in this respect; and that, if the court is in any particular instance of the opinion that this discretion is not exercised in a proper manner, a court is entitled to intervene and invite the Prosecution to call a person as a witness, particularly if that person's name appears on the charge sheet, being a person from whom the Prosecution have taken a statement. If the Prosecution declined to do so , I have no doubt, particularly in view of s.54 that the court has the right and the duty to call that witness of its own motion. Further, in [*158] view of R. v, Harris and the other cases involving the calling of a witness after the close of the case for the Defence, I believe that such person should be called as a witness before the close of the case for the defence. That being the principle of this law as I see it, I must at the same time stress the further principle embodied in the authorities that the discretion of the prosecution is a wide discretion and that the court, must not lightly interfere with its exercise unless satisfied that there was some oblique motive in the prosecution’s refusal to call a particular person as a witness.

On my view of the present case, I do not believe that it has been established that the Prosecution has acted improperly in the matter and that their discretion has been exercised wrongly. There may be many reasons why the Prosecuting Officer may not wish to call a particular person whose name appears on the charge sheet as a witness and it if would not be easy or desirable to lay down rules as to the exercise of that discretion, otherwise the court would be assuming the role of the Prosecution and the role of the Defence in this matter. A discretion in the Prosecution carries with it, to my mind, a wide consideration of all aspects of the case and, although it would not, of course, be correct for the Prosecution not to call a particular person as a witness merely because his evidence would be inconsistent with the other evidence, the considerations that may be taken into account by the Prosecution in deciding whether to call such

person as a witness may bear on the interrelation of the evidence as well as on a number of other considerations. In any

event, in this case I would not be prepared to interfere [*159] with the exercise of the Prosecution’s discretion, particularly in view of. the fact that the Prosecution has made available to the Defence the name and address of the witness. Further, the Prosecution having no obligation in the instant case to call the person in question as a witness, I would leave it open whether this particular person should be called as a witness at this stage by the Court on its own motion if the Court is satisfied that that course is necessary in the interests of justice in accordance with the power of the Court in this respect both under the authorities which I have referred to and under s.54 of the Criminal Procedure Law.'

Order accordingly.